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Oliver v. Barrick Goldstrike Mines11/1/1995
mphasis added).
8 We note, parenthetically, that the language of NRS 616.060(1), excluding from coverage any employee who is both casual and "not in the course of the trade, business, profession or occupation of his employer" (emphasis added), contains the exact language defined by NRS 616.120. It is distinctly dissimilar to the "same trade" language used in NRS 616.262(1)(b) which excludes as employers for purposes of chapter 616, those employers who are "not in the same trade, business, profession or occupation as the independent enterprise" (emphasis added). The differences between the first two statutes and the latter statute are substantial, apparent, and obviously necessary since they address different concerns.
9 NRS 616.286 also provides support for our disposition of this case. In pertinent part, the statute provides: 1. A principal contractor is not liable for the payment of compensation for any industrial injury to any independent contractor or any employee of an independent contractor if:
(a) The contract between the principal contractor and the independent contractor is in writing and the contract provides that the independent contractor agrees to maintain coverage for industrial insurance pursuant to this chapter; (b) Proof of such coverage is provided to the principal contractor; (c) The principal contractor is not engaged in any construction project; and (d) The independent contractor is not in the same trade, business, profession or occupation as the principal contractor. The terms of this statute were satisfied in the instant case. Mountain States, an independent contractor, pursuant to written contract, provided industrial insurance coverage for its employees. Barrick is not engaged in any construction project, and Barrick and Mountain States are clearly not engaged in the same trade or business. Barrick, therefore, had no liability for the payment of industrial compensation to Oliver. The same reasoning applies to NRS 616.262, the terms of which clearly exclude Barrick as an employer under chapter 616. If it were otherwise, the latter statute would require Barrick to assume the responsibility for providing industrial insurance coverage to Oliver contrary to the terms of NRS 616.286 and the express contract provision which Barrick insisted upon in order to avoid such responsibility.
10 Under this distinction, the case of Alaperet v. Phelps, 408 F.2d 669 (9th Cir. 1969), does not change the analysis. In Alaperet a welder (an employee of a sub-contractor) was killed in an accident while working on a well construction project. The heirs of the welder then brought a wrongful death suit against the general contractor. The Ninth Circuit held that the general contractor was the statutory employer of the subcontractor and was therefore immune from suit under the NIIA. Not only is Alaperet non-binding on this court, it represents a run of the mill construction case that falls within the exemption of NRS 616.262(3). Therefore, the case does not apply to the facts of this case.
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